Citation Nr: 0613196
Decision Date: 05/05/06 Archive Date: 05/15/06
DOCKET NO. 03-09 382 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
The veteran served on active duty from October 1942 to
December 1945. He died in January 2001. The appellant is
the veteran's widow.
This case was remanded by the Board of Veterans' Appeals
(Board) in December 2004 to the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West
Virginia for additional development. The case is again
before the Board for adjudication.
The issue of entitlement to service connection for Dependency
and Indemnity (DIC) benefits under the provisions of
38 U.S.C. § 1318 (West 2005); 38 C.F.R. § 3.22 (2005) was
raised at the veteran's September 2004 travel board hearing
and was discussed in the November 2005 Supplemental Statement
of the Case. However, under 38 C.F.R. § 19.31 (2005), a
Supplemental Statement of the Case cannot be used to announce
decisions on an issue not addressed in the Statement of the
Case. Consequently, the issue of entitlement to DIC benefits
under the provisions of 38 U.S.C. § 1318 is referred to the
RO for the issuance of an appropriate rating decision.
FINDINGS OF FACT
1. The veteran died in January 2001 at the age of 79. The
cause of death was pancreatic cancer with metastasis;
significant conditions contributing to death but not related
to the underlying cause of death were diabetes and
hypertension.
2. At the time of the veteran's death, service connection
was in effect for major depression, recurrent, with mood
congruent psychotic features, 100 percent disabling effective
January 18, 1994; moderately advanced arrested pulmonary
tuberculosis, zero percent disabling; and a gunshot wound
scar of the lower back, zero percent disabling.
3. Pancreatic cancer, diabetes, and hypertension were not
shown in service or within one year after service discharge
and are not related to service.
4. The evidence of record does not show that the veteran's
death is related to service or to service-connected
disability.
CONCLUSIONS OF LAW
1. Pancreatic cancer, diabetes, and hypertension were not
incurred in or aggravated by service, nor may they be
presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1110, 1112, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2005).
2. A disability incurred in or aggravated by service did not
cause or contribute substantially or materially to cause the
veteran's death. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.312 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2005).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi,
16 Vet. App. 183 (2002). After having carefully reviewed the
record on appeal, the Board has concluded that the notice
requirements of the VCAA have been satisfied with respect to
the issue decided herein.
The notice and assistance provisions of the VCAA should be
provided to a claimant prior to any adjudication of the
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Unfortunately, notice to the veteran was not done in this
case until later in the claims process. Nevertheless, a
letter was sent to the appellant by the RO in December 2004
in which she was informed of the requirements needed to
establish service connection for the cause of the veteran's
death. In accordance with the requirements of the VCAA, the
letter informed the appellant what evidence and information
she was responsible for providing and what evidence VA would
be obtaining. The letter explained what evidence VA needed
from the appellant and told her that VA would request records
for her if she provided sufficient information to identify
the records. Although additional medical evidence was
subsequently received from the appellant without a waiver of
RO review, this evidence is duplicative of evidence already
on file. There is no indication in the record that
additional evidence required to decide the issue on appeal is
available and not part of the claims file.
The duty to notify includes informing the appellant that she
must send in all evidence in her possession pertaining to the
claim. 38 C.F.R. § 3.159(b)(1). The letter sent by VA to
the appellant in December 2004 stated "[i]f you have any
evidence in your possession that pertains to your claim,
please sent it to us." Additionally, the provisions of
38 C.F.R. § 3.159(b)(1) were provided to the appellant in the
November 2005 Statement of the Case. Consequently, the duty
to notify the appellant of necessary evidence and of
responsibility for obtaining or presenting that evidence has
been fulfilled.
The Board notes that the appellant was not informed that an
effective date would be assigned if her claim was granted.
However, since the appellant's claim for service connection
for the cause of death is being denied, no effective date
will be assigned, so there can be no possibility of any
prejudice to the appellant. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. The VCAA also requires VA
to obtain a medical nexus opinion when such an opinion is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. Nevertheless, a medical nexus
opinion in this case is not necessary based on the evidence
now of record. The Board concludes that all available
evidence that is pertinent to the claim decided herein has
been obtained and that there is sufficient medical evidence
on file on which to make a decision. The Board additionally
finds that VA has complied with general due process
considerations. See 38 C.F.R. § 3.103 (2005).
Finally, to the extent that VA has failed to fulfill any duty
to notify and assist the veteran, the Board finds that error
to be harmless. Of course, an error is not harmless when it
"reasonably affect(s) the outcome of the case." ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this
case, however, as there is no evidence that any failure on
the part of VA to further comply with the VCAA reasonably
affects the outcome of this case, the Board finds that any
such failure is harmless. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed.
Cir. April 5, 2006); see Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
Law and Regulations
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110. For certain chronic
disorders, including pancreatic cancer, diabetes, and
hypertension, service connection may be granted if the
disease becomes manifest to a compensable degree within one
year following separation from service. 38 U.S.C.A. §§ 1101,
1112; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may
also be granted for any disease diagnosed after discharge,
when all of the evidence establishes that the disease was
incurred in service. 38 C.F.R. § 3.303. Moreover, service
connection may also be granted for a disability that is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a).
VA death benefits are payable to the surviving spouse of a
veteran if the veteran died from a service-connected
disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312
(2005). In order to establish service connection for the
cause of the veteran's death, the evidence must show that a
disability incurred in or aggravated by active service was
the principal or contributory cause of death. The issue
involved will be determined by the exercise of sound
judgment, without recourse to speculation, after a careful
analysis has been made of all the facts and circumstances
surrounding the death of the veteran. 38 C.F.R. § 3.312.
In order to constitute the principal cause of death the
service-connected disability must be one of the immediate or
underlying causes of death, or be etiologically related to
the cause of death. In order to be a contributory cause of
death, it must be shown that the service-connected disability
contributed substantially or materially to cause death; that
it combined to cause death; or that it aided or lent
assistance to the production of death. It is not sufficient
to show that the service-connected disorder casually shared
in producing death, but rather it must be shown that there
was a causal connection between the service-connected
disability and the veteran's death. 38 C.F.R. § 3.312(b),
(c).
Analysis
The veteran died in January 2001 at the age of 79. The death
certificate reported the cause of death as pancreatic cancer;
significant conditions contributing to death but not related
to the underlying cause of death were diabetes and
hypertension. At the time of the veteran's death, the only
compensable service-connected disability was a psychiatric
disability, which was assigned a 100 percent evaluation
effective January 18, 1994.
The appellant testified at her September 2004 personal
hearing that the veteran's death was related to either his
service-connected disabilities or to the medication that he
took for those disabilities and that he had been totally
disabled since 1982 due to his service-connected
disabilities.
The veteran's service medical records do not show any
evidence of pancreatic cancer, diabetes, or hypertension. In
fact, the veteran's pancreatic cancer, diabetes, and
hypertension were not shown in service or for many years
after service discharge, and there is no medical evidence
that establishes a direct nexus between the veteran's
pancreatic cancer, diabetes, or hypertension and his military
service.
In the absence of such evidence, the applicable regulations
noted above require a showing that a service-connected
disorder caused or contributed substantially or materially to
cause death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.310, 3.312.
In order to establish whether a service-connected disorder
contributed to death, there must be evidence of death;
evidence of a service-connected disability; and medical
evidence of a nexus between the service-connected disability
and the veteran's death. See Hickson v. West, 12 Vet. App.
247, 253 (1999); Wallin v. West, 11 Vet. App. 509, 512
(1998).
However, a review of the record fails to disclose any medical
evidence that specifically demonstrates a relationship
between the veteran's service-connected psychiatric
disability, pulmonary disability, or gunshot wound scar,
including any medication prescribed for the disabilities, and
his death from pancreatic cancer, diabetes, and hypertension.
There were no complaints or findings of pancreatic cancer,
diabetes, or hypertension on VA examinations in November 1948
and October 1950. In fact, the initial post-service medical
evidence of any of the disabilities was not until elevated
blood pressure readings were shown on VA examination in
October 1979, which is over 33 years after service discharge.
Pancreatic cancer was diagnosed on VA hospitalization in
September 1993. Additionally, there is no medical opinion on
file showing a causal connection between any of the veteran's
service-connected disabilities and his death from pancreatic
cancer with significant contributing conditions involving
diabetes and hypertension.
With respect to hearing testimony and written contentions
from the appellant to the effect that there was a causal
relationship between the veteran's service-connected
disabilities and his death, the Board notes that it is well-
established that a lay person without medical training is not
considered competent to offer opinions regarding medical
matters, such as diagnoses and determinations of etiology,
calling for specialized medical knowledge. See, e.g.,
Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Since the
appellant is not a medical expert, she is not competent to
express an authoritative opinion as to the relationship
between the service-connected disabilities and the cause of
the veteran's death. See 38 C.F.R. § 3.159(a)(2) ("competent
lay evidence" means any evidence not requiring specialized
education, training or experience); see also Espiritu v.
Derwinski, 2 Vet. App. 492, 494-5 (1992).
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as there is no medical evidence
of a relationship between the veteran's death to his military
service or to a service-connected disorder, the preponderance
of the evidence is against the appellant's claim, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
In conclusion, for the reasons and bases expressed above, the
benefit sought on appeal is denied. In so concluding, the
Board in no way intends to minimize the veteran's honorable
service to this country or the appellant's sincerity in
pursuing this claim. However, the Board is obligated to
decide cases based on the evidence before it. See Harvey v.
Brown, 6 Vet. App. 416, 425 (1994) (finding that the Board is
bound by the law and is without authority to grant benefits
on an equitable basis).
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs